News and Resources

This is a list of judgments of the Planning Court following a full hearing, or arising from an appeal from a Planning Court judgment, that were handed down in the preceding week. All links are to the relevant BAILII transcript. Summaries are for information only and are not to be relied upon as advice.

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Index:

1. Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868 (05 November 2019)

2. Anand & Anor v Royal Borough of Kensington And Chelsea [2019] EWHC 2964 (Admin) (06 November 2019)

1. Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868 (05 November 2019)

Case Summary & Commentary: Click Here

Full Case: Click Here

Commentary: This is a Court of Appeal decision in which Lewison LJ allowed the appeal and quashed the inspector’s decision that held that section 73 of the Town and Country Planning Act 1990 can be used to obtain planning permission with an amended description of development, as well as conditions differing from those on the original permission.

The case concerned planning permission granted in 2016 for the installation and operation of two wind turbines, stated in the description of development as being of a height up to 100m. Condition 2 imposed on the decision notice provided that the development was to be carried out in accordance with a number of approved plans, of which one showed a wind turbine with a tip height of 100m.

The applicant applied under 73 of the TCPA 1990 to vary condition 2 and replace this plan with one that showed tip heights for the turbines up to 125 metres. The reason for application was clearly stated to “enable a taller turbine type to be erected”.

The council refused to grant the permission and the applicant appealed to the Welsh Ministers against that refusal. The Inspector appointed allowed the appeal and granted the permission, after considering the effect of the proposed increase in height.

It was held in this appeal that changing the description of the permitted development was outside the power conferred by section 73. It is a question of statutory interpretation and section 73 is on the face of it limited to granting permission for the development of land “without complying with conditions” subject to which a previous planning permission was granted. The planning authority should therefore consider only the question of conditions. The permission granted pursuant to section 73 should permit the same development subject to different conditions. The appeal was allowed and the inspector’s decision quashed.

For further comment please see Simon Rickett’s blog post on this case: https://simonicity.com/2019/11/05/law-altered-on-altering-permissions-court-of-appeal-finney/ 

Town Legal summary prepared by Amy Fender

2. Anand & Anor v Royal Borough of Kensington And Chelsea [2019] EWHC 2964 (Admin) (06 November 2019)Case Summary & Commentary: Click Here

   Full Case: Click Here

   Commentary: The High Court has dismissed a legal challenge by the trustees of the Central Gurdwara (Khalsa Jatha) London (‘Claimant’) to the Royal Borough of Kensington & Chelsea (‘RBKC’) decision to make a Traffic Management Order (‘TMO’) imposing additional parking restrictions in the evenings and weekends in the area with a Sikh Temple, which was brought on consultation, Public Sector Equality Duty (‘PSED’), and irrationality grounds.

   The statutory review legal challenge was brought on 3 grounds, all of which were unsuccessful. Ground 1 was that RBKC had acted unfairly in deciding to make the TMO on 18 June 2019 in breach of the Claimant’s legitimate expectation arising from a promise made to them by RBKC at a meeting on 2 April 2019 that before a final decision was made RBKC would consult them further. Ground 2 was that RBKCs TMO decision was in breach of the PSED under s149 EA 2010 on the basis that: (i) RBKCs data about the age and disability of worshippers in the Equality Impact Analysis (‘EiA’)  was inadequate and the financial impacts on the Gurdwara were not considered; (ii) it was irrational for RBKC to have concluded without evidential support in the EiA that worshippers could use public transport, that those with limited mobility could be dropped off by third parties, and that there were alternative car parking spaces; and (iii) that there had been no proper or conscientious focus in the EiA on the PSED statutory criteria. Ground 3 was that RBKC had acted irrationally in deciding to extend the parking restrictions when the parking spaces were 20-25% empty at evenings and weekends.

   As to Ground 1, the High Court held that the Claimant had failed to establish, on the evidence, that RBKC had made a clear and unambiguous promise to the Claimant that it would not extend the controlled parking hours without further consulting them. As to Ground 2, the High Court , considering the contents of the EiA, officer report, and underpinning equalities evidence held that there had been no breach of the PSED as RBKC had: (a) properly understood the PSED and applied the relevant statutory criteria; (b) carefully analysed the relevant protected characteristics of age and disability; (c ) assessed the equalities impacts on residents as well as worshippers; and (d ) decided to make further dedicated blue badge parking provision for disabled worshippers as mitigation for identified equalities impacts. As to Ground 3, the High Court concluded that RBKC was legally entitled, in the exercise of its discretionary judgment, to conclude that the occupancy rate of 80% in evenings and weekends was high and that the proportion of non-resident vehicles was significant.

   This case is an important illustration of the high threshold and evidential burden for claimants to satisfy to successfully advance a substantive legitimate expectation claim. It is also a useful reminder that the PSED is a procedural duty which does not require any particular outcome and does not enable claimants to challenge the merits of a public body’s decision.

   Town Legal summary prepared by Paul Arnett